مراجعة القانون الإداري

Administrative Law Review

• Administrative law is a branch of internal public law (newly formed).
• The administration, in its organic sense, is a collection of bodies, organizations, and administrative authorities that represent the state in its intervention in the lives of individuals to achieve the public good.
• Administrative law is a set of legal rules that govern and regulate administrative bodies in the state and their actions or activities aimed at achieving the public good.
• The emergence of administrative law in France is attributed to historical and political factors.
• Administrative law emerged in France in 1789.
• France established the Council of State, initially as an advisor to the administration.
• Egypt was based on unified justice.
• Administrative law emerged in Egypt in 1946.
• The French Council of State gained full judicial jurisdiction in 1872.
• Constitutional rules are not just written rules.
• Constitutional legislation is the primary formal source of administrative law.
• Implementing regulations are issued by the Prime Minister.
• Organizational and disciplinary regulations are issued by the Prime Minister + the Council of Ministers' opinion.
• Delegated and emergency regulations are issued by the President of the Republic.
• Administrative bodies' adherence to a specific manner and customs in dealing with a specific situation, which becomes like a written law (administrative custom).
• It is not permissible to relinquish public domain assets (example of administrative custom in France).
• The transfer of a student to the following academic year upon successful completion (administrative custom in Egypt).
• Administrative custom is a limited and rare source of administrative law.
• Modified custom is not legitimate and cannot be considered a source of administrative law.
• Administrative courts, in general, are an authority.
• Administrative law is constantly evolving, judicially established, independent, and non-codified.
• Codification in administrative law is secondary to judicial precedent.
• Private law relations are based on equality.
• Public law relations prioritize the administration to achieve the public good.
• Administrative courts differ from civil courts in that they are authoritative.
• The principles and theories of administrative law are not gathered in one text.
• Egypt's administrative law is not codified.
• Private law rules are not related to public order.
• Administrative law rules relate to public order.
• Legal entities originated in private law.
• Legal entities have greater importance in public law.

Legal Entities

• Legal entities (general – specific).
• General legal entities (territorial – subsidiary or charitable).
• Territorial legal entities (state – governorate – cities – districts – villages).
• Subsidiary and charitable legal entities (comprising all types of public bodies).
• The most important and dominant public legal entity over all entities (general or private), is the state.
• Governorates are local government units, each with legal status.
• The decision to establish or abolish governorates comes from the president of the Republic.
• The decision to establish cities, districts, and neighborhoods is the result of the Prime Minister's decree + consensus of the governorate's local people's council.
• The decision to establish or abolish villages comes from the governor + the opinion of the provincial people's council.

Administrative Law (Continued)

• Public bodies or institutions or public companies are considered as subsidiary or charitable legal entities.
• Territorial legal entities are bound by the territorial limits they represent.
• Subsidiary or charitable legal entities are bound by the purpose they were established for.
• Territorial legal entities are based on the concept of democracy.
• Subsidiary or charitable legal entities are based on the concept of ensuring administrative effectiveness.
• The results of acquiring or granting legal personality - Shared by general and specific entities:
• Independent financial liability.
• Legal capacity.
• Right to litigation.
• Independent domicile.
• Representative expressing the will.
• Exclusive to public legal entities:
• Issuing administrative decisions and enforcing them by force.
• For example (expropriation – direct seizure – administrative contracts).
• Public property owned by public entities is considered public property.
• Employees become public employees.
• Compliance with administrative decrees.
• Public legal entities can own private property and be subject to private law rules.
• Some public entities may have a specific system for their employees.
• Territorial legal entities end by the same tool by which they were established.
• The state's legal personality ends (loss of an element – or merger).
• The legal personality of subsidiary or charitable entities ends by dissolution or the same method of establishment, or merger.
• If a law is passed dissolving a company's board of directors, the board remains in place until a new one is selected.
• In all cases, when a public entity ends, its assets transfer to the entity specified by law or the entity it belongs to.

Administrative Organization

• Centralized and decentralized administration are forms of state administrative organization.
• Centralized administration means concentrating the administrative function in the hands of the central government in the capital.
• Decentralized administration means distributing the administrative function between the central government and local or subsidiary administrative units or bodies.

Administrative Centralization

• Centralization of power in the hands of the central administration.
• Subordination of central government employees to the administrative hierarchy.
• Forms of administrative centralization (concentration – decentralization)
• Concentration is called (extreme centralization).
• Concentration means that the competent minister must be consulted in all matters.

Decentralization

• Decentralization is achieved by distribution of jurisdiction and delegation of authority.
• The law distributes the power among the members of the administration.
• Delegation is from top to bottom.
• Delegation does not mean the CEO relinquishes their authority and responsibilities.
• Delegation is a way to achieve speed and efficiency in work.
• Delegation is a flexible tool that lessens the CEO's burden and increases opportunities for grievances.
• Delegation increases opportunities for grievances and helps in discovering new leaders.
• Provisions on delegation are in several laws or a specific law.
• Delegation must be based on a law.
• Delegation must be issued by the same body authorized to have jurisdiction.
• Delegation must be by the competent authority.
• The general rule is that delegation is partial.
• It is permissible for the legislator to authorize full delegation, albeit infrequent.
• It is not permissible for a person to delegate what is already delegated to them.
• Delegation is generally written.
• Oral delegation is permissible, but a subsequent written acknowledgment is required.
• It is not permissible to delegate a reserved particular authority.
• Delegation eliminates the concept of concentration of power.
• Delegated signatures end when one of the parties changes.

Administrative Centralization Advantages

• Strengthens power and spreads government influence.
• Strict supervision and subordination to the presidency.
• Justice and equality among individuals in government services.
• Ensures uniformity in administrative systems.
• Reduces expenses.

Administrative Centralization Disadvantages

• Lack of administrative organization.
• Causes time waste.
• Contradicts democracy.
• Slow decision-making.
• Issuance of erroneous decisions.

Local Central Authority

• Governors – district and section administrators – mayors and sheikhs.
• Governors are appointed by a presidential decree.
• The instrument for appointing governors is a presidential decree.
• The governor cannot combine their position with any other council.
• The governor's position generally has a political nature.
• Governors' salary and benefits parallel that of ministers.
• Governors are independent by law until the end of the presidency.

Governor's Authority

• Implementing general policy.
• Protecting state property.
• Responsibility for security, order, and public morals within the governorate.
• Following construction regulations after approval from the people's council.
• Supervision of national facilities, excluding judicial entities.

District & Section Administrators

• Appointed by the Minister of Interior after the approval of the High Police Council.
• District and section administrators are considered judicial enforcement officers.
• The system of mayors and sheikhs holds administrative, political, and social importance.

Eligibility for Mayors and Sheikhs

• Egyptian citizen listed in the village electoral register.
• Good reputation, not politically disqualified.
• Age 30 or over.
• Literate.
• Mayor: Minimum 5 feddans of land or stable income of 300 pounds.
• Sheikh: Possession of land (ownership or rent) or monthly income of 100 pounds.
• Individuals previously dismissed can run for mayor or sheikh after a specified period since their dismissal.

Selection Process

• The selection process for mayors and sheikhs is now by appointment, rather than election.
• The application period is 30 days from the vacancy.
• Applications are submitted within 20 days.
• Publication of the application opening in public places for 10 days after the announcement.
• Appointing the mayor is done by the Minister of the Interior.
• Appointing the sheikh is done by the Mayor and Sheikh Committee by a majority vote.
• Appeal against the decisions of the Mayor and Sheikh Committee within 15 days of notification.
• The Minister of the Interior decides on appeals within a month of submission.

Committee Composition

• A judge chosen by the general assembly heads the committee.
• Criminal investigation Department Director
• State Security Investigations Inspector
• Deputy Security Chief (committee chair).
• The committee's decisions are issued by a simple majority; in a tie, the chairman's vote prevails.

Mayors' and Sheikhs' Responsibilities

• Maintaining order and enforcing laws.
• Mayors and sheikhs are considered public servants.
• They receive a monthly allowance, not a salary.
• Mayor: 750 pounds.
• Sheikh: 500 pounds.

Administrative Decentralization

• Distribution of administrative functions between central authority and other administrative bodies.
• Pillars of administrative decentralization:
• Existence of independent and diverse interests.
• Existence of councils or bodies independent of the administration of these interests.
• Accountability of decentralized bodies to central authority.
• The authority of decentralized bodies is determined, generally, by a general rule.
• Presidential authority surpasses supervisory power.
• Relative autonomy of decentralized bodies.

Types of Administrative Decentralization

• Regional or local decentralization.
• Subsidiary or charitable decentralization.

Advantages of Administrative Decentralization

• Implementation of democracy in the administrative field.
• Relieving the central authority of burdens.
• Avoiding complex administrative procedures.
• Resolving urgent problems and crises.

Disadvantages of Administrative Decentralization

• Threatens the unity of the administrative state.
• Lack of experience and expertise.
• Each local unit is elected by a direct, secret ballot.
• Burden on the state treasury.
• Possible disputes between local and central administrations.

Public Employment (continued)

• Public employee: Any person involved in permanent work by the competent authority to serve a public facility administered by the state through direct management.
• Public Employee Requirements ( continued)
• Egyptian nationality.
• Good character and reputation.
• No prior criminal convictions or actions against honor.
• No prior dismissal from service.
• Physical fitness
• Meets job specifications.
• Passed the required exam.
• Literacy.
• Military Service Requirements.
• Naturalized citizens receive rights after a certain time of established loyalty to their adopted country.
• Foreigners are appointed as exceptions with specific conditions.
• The Ministry of Administrative Development appoints foreigners.
• Suspicion is enough reasonable cause to refrain from the individual.

Public Employee Selection

• Age.
• Methods of Selection:
• Competition.
• Election.
• Special technical training.
• Assignment.
• Direct Appointment
• Examination Types:
• Essay-style
• Short Answer
• Practical
• Reserved Positions
• Interviews are supplementary to written exams.
• Practical exams are also supplementary to written and oral exams.
• Direct appointment violates the principle of equal opportunity.

Transfers

• Transfers (fixed and positional).
• Transfer of an employee from one unit to another, which does not delay their promotions.
• Transfer requests from competent personnel authorities.
• The employee transferred receives wages from the new unit (since the transfer commencement).
• Positional transfer is an employee transfer within the same unit to a different position.
• Temporary transfers (general or partial).
• The maximum duration for temporary transfers in a unit is four years.
• Temporary transfer means taking on additional duties or responsibilities, in addition to their usual responsibilities.
• The unit can end a temporary transfer under certain conditions, such as notification.
• It is possible to appoint an employee for work outside the unit upon their request.
• It is not possible to transfer an employee to more than one unit during a temporary assignment.
• Other methods of filling public positions: (appointment, promotion, temporary transfer, and loan)
• A transferred employee to a higher position does not receive a higher salary but has the right to approved benefits.

Employee Loans

• Generally for acquiring material benefits, and are internal or external.
• Duration is one year, renewable, with no maximum limit.
• The allocated bonuses are added to the salary.
• The loan period is counted as service time for pension calculations.
• If the employee wishes to end the loan before its expiry:
• 15 days' notice (if internal)
• 3 months’ notice (if external).
• An employee returning from a loan maintains all their original work benefits.
• Salary is effective upon work commencement.

Administrative Regulations

• It is not permissible to seize or waive one's salary (general rule), up to a quarter of the salary is permissible.
• Allowances are a salary increase method.
• Periodic allowances are 7% of the salary in July each year..
• Incentive allowance (once every three years) 5% of the salary.
• No more than 10% of employees can receive an allowance in a year per level.
• Scientific excellence allowance: 7% of the salary.
• Rewards are non-periodic for outstanding work/performance.
• Promoting an employee is moving them from their current position to a higher-level position.
• Promotion by seniority is for non-senior positions, based on the appointment date.
• Promotion orders come from the competent appointing authority, effective from the order date.

Public Facilities

• A public facility is a state project for a public interest.
• Elements of a public facility: State establishment, public benefit, and the general authority for management.
• Not every state establishment is a public facility; the determination is made by the relevant authority (law).
• Public facilities are created by law or through a law.
• If a public facility's service is for a fee, it must not conflict with the public benefit.
• Public benefit is not necessarily universal.
• Material public benefit (water, electricity, transport).
• Moral public benefit (internal and external security, education).
• The general authority's element involves using public law means in administration.
• The administration possesses discretionary power over public facility establishments.
• Types of public facilities: (administrative – economic – professional)

Public Administrative Facilities

• Public administrative facilities perform purely administrative functions and use public law means in their management.
• Public administrative facilities can use private law means (as an exception).
• Examples include defense, police, courts, and education.

Economic Public Facilities

• Facilities that perform private-sector-like activities, such as post offices, railways, water, and gas supply.
• The criterion for separating administrative and economic facilities is the nature of the activity.
• Economic facilities are governed by both public and private law.

Professional Public Facilities

• Organizations that regulate professional affairs, like unions, are governed by both public and private law.
• Appeals against union rejection of membership are possible.
• Unions can issue regulatory and individual decisions.

Responsibility for Facility Damage

• National facilities' damage falls on the national government.
• Regional or municipal facilities' damage falls on the jurisdiction responsible.
• Public facilities are established through:
• 1971 law and decree from the president.
• 2014 law and decree from the prime minister + council of ministers.
• Types of public facility management: (direct exploitation – using legal entity – concession or contract – mixed exploitation – indirect exploitation)
• Direct exploitation manages administrative and economic facilities in Egypt.
• Industrial and commercial facilities are flexible.
• First law for subsidiary organizations issued in 1957.
• Forms of subsidiary legal entities: (general organization – general company – cooperative)
• Concession or contract is a special type of contract, with a 30-year term.
• Contractual parties: relevant authority and individual/company
• Authority to modify does not depend on the contractor's will.
• The right to collect fees is a conditional right, limited.
• Contractors cannot exceed 10% of their capital annually in profits.
• Contractors bear routine risks but not extraordinary ones.

Concession Advantages

• Freedom from administrative constraints.
• Reducing administrative burdens.
• Avoiding political considerations.
• Recovering the facility after the contract term.

Concession Disadvantages

• External supervision/monitoring of contractors.
• Inability to bear project risks.
• Prioritizing profit over public interest.
• Controlling the administration.

Mixed Exploitation

• Intermediate system between direct exploitation and concession
• The state bears financial risks and responsibilities (in the general case).
• Mixed economy companies are subject to commercial law.

Strikes

• Workers' cessation of work for a set period; peaceful strikes are a legal right.

Resignations

• Employee's desire to leave the job permanently.
• A resignation is effective when accepted.

Fees and Property

• It's not permissible to seize or confiscate public facilities' (public or private) assets and in any management method.
• Actual employee: An appointed or unelected employee.

Administrative Actions

• Normal conditions (some are valid, some are not).
• Exceptional conditions (all actions valid).
• Actual employee actions are admissible in court for nullity or compensation claims.
• Administrative enforcement's mandate is preventative, prior to the misconduct.
• Judicial enforcement's role is remedial, subsequent to misconduct.
• Administrative enforcement takes the form of decisions (individual or regulatory).
• Administrative regulations are the primary tools of administrative enforcement.
• The law limits individual activities (requiring prior permission).

Public Employment Requirements

• Egyptian nationality.
• Good conduct and reputation.
• No prior convictions for serious crimes or matters of honor.
• No prior dismissal from the service.
• Physical fitness.
• Meeting job specifications.
• Passing the required examination.
• Other requirements:
• Literacy.
• Military service requirements.
• Naturalization requirements.
• Foreigner appointments (exceptional).

Rehabilitation Requirements

• Rehabilitation is permissible after a specific period or if 4 years have passed.
• Prohibition from appointment can be temporary or permanent.
• An applicant is ineligible if dismissal for theft, assault, or betrayal occurred.
• Minimum age for job applications is 18.
• Employing authorities can mandate minimum/maximum age limits, respecting the principle of equality.

Employee Selection Methods

• Competition.
• Selection by direct decision.
• Special technical qualifications training.
• Election.
• Reserved positions.
• Assignment;
• Appointments are by presidential decree or delegated authority, based on competence and merit.

Examination Formats

• Written, oral, practical.
• Written examinations include essays, short-answer, and practical questions.
• Oral exams supplement written exams.
• Practical exams supplement written and oral ones.
• Direct selection avoids equal opportunity and fairness.
• Nominations are by election (public or peer).

Military and Police Cadres

• Military and Police positions considered special technical personnel.
• Top graduates' assignment to universities is an exceptional assignment.

Transfers and Loans

• Transfers (positional and job-related).
• Transfers are valid when they do not hinder existing promotion opportunities.
• Transfer order issues from competent personnel authorities.
• An employee receives wages from the new transfer authority beginning from the assignment date.
• Positional transfers are within the same department or unit.

Temporary Assignments

• Full temporary assignments do not exceed four years in a single department.
• Temporary assignments (full or partial).
• Temporary assignment involves additional duties alongside existing ones.
  • The unit is able to end the temporary transfer under particular conditions, like notification.
  • Employment outside the unit is possible upon the employee’s request.
    • An employee cannot be temporarily assigned to multiple units.
• Other methods of filling public positions: (appointment, promotion, temporary transfer, and loan)
• An employee transferred to a higher-level post does not receive an increased salary but is entitled to the agreed benefits.

Employee Loan

• Loans are usually for material benefit and can be internal or external. -Duration is generally one year, renewable.
• The loan period counts toward pension service.
• If an employee wishes to end the loan before its term: -15 days notice for internal transfers. -3 months notice for external transfers.
• Upon returning from a loan, the employee retains all previous positions and benefits.
• Salary is effective from the commencement of work.
• Salaries and Benefits
• Not permissible to withhold or to waive salaries (general rule) except up to 1/4.
• Allowances are a means of salary increase.
• Periodic allowances (7% of salary in July)—a yearly increase.
• Incentive allowances (5% of salary) every 3 years.
• No more than 10% of employees per rank may receive these allowances annually.
• Special allowances for scientific excellence (7% of salary).
• Rewards are given against extraordinary achievements/efforts.
• Promotion and transfer.
• Promotion by seniority applies to non-senior positions, starting from the appointment date.
• Promotion orders come from the relevant authority, effective from their issuance.

Public Facilities

• Public facility: A state-established project for public benefit(s), managed by public authority.
• Public facilities are established by law.
• If service is fee-based, it shouldn't conflict with public interest.
• Public interest does not necessarily have to be universal.
• Material Public Benefit: Water, electricity, transportation
• Moral Public Benefit: Internal security, external security, education.

Administrative Authority Over Public Facilities

• The administration has discretionary power in establishing public facilities.
• Types of public facilities: Administrative, economic, and professional
• Administrative facilities perform purely administrative functions and use public law means in their management.
• Administrative facilities can use private law methods in exceptional cases.
• Examples: Defense, police, courts, and education.
• Economic facilities: Activities similar to private sector ventures – post offices, railways, water and gas.
• The basis for differentiating administrative and economic facilities is activity type.
• Economic facilities are governed by both public and private law.
• Professional facilities: Organizations that regulate professionals (e.g., unions).

Public Facility Establishment Methods

• 1971 constitution (presidential decree).
• 2014 constitution (prime minister's decree, council of ministers' approval).

Public Facility Management Methods

• Direct operational management.
• Through legal entity.
• Concession or contract.
• Mixed exploitation.
• Indirect exploitation.

Concession Contract

• Commercial agreement (30 years).

• Parties: Management/Authority & Individual/Company.

• Modification Rights are non-revocable.

• Rights to fees are restricted.

• Limitation on contractor profits – 10% annually of the capital.

• Contractors are responsible for routine risks but not extraordinary incidents.

• Advantages of concessions: Freedom from administrative constraints, reduced liability for the administrative authority, the avoidance of political considerations, and the return of the service to the management entity after the contract ends. Disadvantages of concessions: External monitoring of contractors, inability to bear project risks, prioritizing private profit above the public interest and controlling the service.

• Mixed exploitation: Moderate approach between direct management and concession.

• Mixed-economy companies are governed by commercial law.

Administrative Decisions

• An administrative decision is a final legal act issued by a national administrative authority based on its sole discretion.
• Administrative decision validity criteria: Jurisdiction, form, subject matter, reason, and objective.
• Jurisdiction: The authority's right to take the action.
• Lack of jurisdiction: Inability to exercise a legal function due to being outside the proper authority.
• Legal standards determine jurisdictional rules.
• Jurisdictional rules are public policy-oriented.
• Courts can address cases of invalid jurisdiction independently.
• Lack of jurisdiction can be raised at any point.
• A defective decision due to lack of jurisdiction cannot be resolved through subsequent approval.
• Agreement on amending jurisdictional rules is not permissible.

Lack of Jurisdiction Forms

• Simple lack of jurisdiction: Decisions are valid but can be challenged.
• Serious lack of jurisdiction: Decisions are null and void.

Subject Matter Deficiencies

• One authority encroaching on another's jurisdiction (e.g., a minister intervening in another's jurisdiction).
• Subject matter deficiencies in time or place.
• Procedural, temporal, and spatial lack of jurisdiction.

Decisions Validity

• Simple determinations and compound determinations.
• Simple determinations: self-contained acts (e.g., appointments, promotions, transfers).
• Compound determinations: multi-phased actions (e.g., land acquisition, auction/tenders in administrative contracts).
• Appeals are permitted to certain types of compound decisions.
• Preliminary, pre-contract, and preparatory measures cannot be appealed against.
• Appeals are allowed to compound determinations if they are final or divisible in nature.

Administrative Decisions in Relation to Effects

• Constitutive decisions: Establish new legal statuses.
• Declarative decisions: Reveal existing legal statuses.
• Constitutive decisions are effective immediately after issuance.
• Declarative decisions are effective from the date the condition originated.
• Administrative authorities can suspend the effect of declarative decisions.
• Administrative authorities can withdraw the effects of constitutive decisions only during the appeal period (60 days).

Administrative Decision Termination

• Natural expiry: Expiration of the term or resolution of the actual or legal condition.
• Impossibility: The conditions for the decision are no longer met.
• Fulfillment of a terminating condition or impediment.
• A decision issued to fulfill a specific law expires when the law ends or is repealed.
• Cancellation: An administrative act to nullify a decision’s effects.

Authority to Cancel Decisions

• Cancellation by the relevant authority or the president.
• Cancellation should follow the issuance procedure (written if the original was).

Cancellation of Public Decisions

• Regulatory decisions establish general statuses; cancellation is flexible.
• Regulatory decisions can only be repealed with another similar regulatory decision.
• Administrative decisions that establish individual rights cannot be altered (general rule).
• Exceptions to the rule of non-revocability of individual rights:
• Temporary decisions (e.g., temporary assignments, temporary licenses).
• Provisional decisions/measures conferred on individuals.
• Administrative inaction (silence).
• Non-enforcement decisions (preliminary decisions).

Withdrawing Administrative Decisions

• An administrative authority can only act against unlawful decisions.
• Administrative decisions that affect specific individuals cannot be withdrawn without adhering to legal procedures within a defined period, as often the rights of others depend on the standing of these decisions.
• An administrative decision cannot withdraw from its validity even in exceptional cases, unless it is unlawful.
• Administrative decisions which are not immediately effective can be withdrawn.

Grounds for Administrative Decision Withdrawal

• Invalidity (procedural defects, lack of jurisdiction, illegality).
• Decision is withdrawn within the applicable timeframe, often 60 days.
• Decisions that create no rights for individuals can be withdrawn at the discretion of the authority.

Administrative Decision Withdrawal Timeframes

• Removal of an employee pending court disciplinary proceedings—revocable at any time.
• Decisions requiring presidential approval—revocable at any time.
• Rejection of a license application—revocable at any time.
• Withdrawal annuls the effect of the decision from its date of issuance.
• Valid decisions (general rule: not withdrawable).
• Exception to the general rule, when decisions are withdrawable:
• Procedural dismissal of an employee if judicially convicted.
• Dismissal for corruption, misconduct (no future re-employment).
• Decisions lacking publication/communication to affected parties.

Conditions for Administrative Necessity

• Threat to public order (three elements).
• Inability to address the threat using normal or legal methods.
• The administration's objective is to serve the public good.
• The administrative action taken in response to necessity.

Conditions for Direct Enforcement

• The enforcement decision must have legal backing.
• The level of necessity must be duly assessed.
• Prior administrative notification is required before using direct enforcement.

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